In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY,THE 05TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940WP(C).No. 15034 of 2018 PETITIONER: MOHANAN VELAYUDHANSENIOR CLERK, INCHIANY SERVICE CO-OPERATIVE BANK LTD.NO.K.154, INCHIYANI.P.O.-686512, KANJIRAPPALLY,KOTTAYAM. BY ADV. SRI.P.N.MOHANAN RESPONDENTS: 1INCHIANY SERVICE CO-OPERATIVE BANK LTD.NO.K.154REPRESENTED BY SECRETARY, INCHIYANI.P.O.-686512, KANJIRAPPALLY, KOTTAYAM.REPRESENTED BY SECRETARY, INCHIYANI.P.O.-686512, KANJIRAPPALLY, KOTTAYAM. 2THE MANAGING COMMITTEE OF INCHIANY SERVICE CO-OPERATIVE BANK LTD. NO. 154REPRESENTED BY PRESIDENT, INCHIYANI.P.O.-686512, KANJIRAPPALLY, KOTTAYAM.OPERATIVE BANK LTD. NO. 154REPRESENTED BY PRESIDENT, INCHIYANI.P.O.-686512, KANJIRAPPALLY, KOTTAYAM. 3THOMAS.K. GEORGESENIOR CLERK, INCHIANY SERVICE CO-OPERATIVE BANK LTD.NO. 154, INCHIYANI.P.O.-686512, KANJIRAPPALLY, KOTTAYAM.SENIOR CLERK, INCHIANY SERVICE CO-OPERATIVE BANK LTD.NO. 154, INCHIYANI.P.O.-686512, KANJIRAPPALLY, KOTTAYAM. LTD.NO. 154, INCHIYANI.P.O.-686512, KANJIRAPPALLY, 4THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM-686001.(GENERAL), KOTTAYAM-686001. BY ADVS. SRI.LIJI.J.VADAKEDOM SRI.D.KISHORE SMT. MABLE C. KURIAN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.15034 of 2018 :-2-: J U D G M E N T The petitioner, who is working as Senior Clerkin the 1[st] respondent Bank, which is a Societyregistered under the Kerala Co-operative SocietiesAct and the Rules made thereunder, has filed thiswrit petition under Article 226 of the Constitutionof India seeking a writ of certiorari to quashExt.P2 seniority list published by the Bank andExt.P4 order of the 1[st] respondent; a writ ofmandamus commanding the 4[th] respondent to considerExts.P6 and P7 petitions filed by the petitionerbefore the 4[th] respondent Joint Registrar to issue ageneral direction to respondents 1 and 2 to publishcadre wise seniority list of the employees for thepurpose of promotion in accordance with feedercategory and to declare that the petitioner issenior to the 3[rd] respondent, as there is nodirection in Ext.P1 award of the Industrial W.P.(C)No.15034 of 2018 :-3-: Tribunal to grant “any other benefits” overlooking the seniority/promotion of the petitioner, which hegot while the 3[rd] respondent was out of service. 2.On 24.5.2018 when this writ petition came up for admission, this Court admitted the matter on file. Notice was ordered to respondents 1 to 3 byspeed post. Learned Government Pleader took noticefor the 4[th] respondent. 3.The 3[rd] respondent has filed I.A.No.1/2018 raising the question of maintainability of thiswrit petition as a preliminary issue, in view ofthe provisions under Section 69 of the Kerala Co- operative Societies Act and also the decisions ofthis Court on that point. 4.Heard the learned counsel for the petitioner, the learned counsel for respondents 1and 2, the learned counsel for the 3[rd] respondentand also the learned Government Pleader for the 4[th] :-4-: respondent. 2.On 24.5.2018 when this writ petition came up for admission, this Court admitted the matter on file. Notice was ordered to respondents 1 to 3 byspeed post. Learned Government Pleader took noticefor the 4[th] respondent. 3.The 3[rd] respondent has filed I.A.No.1/2018 raising the question of maintainability of thiswrit petition as a preliminary issue, in view ofthe provisions under Section 69 of the Kerala Co- operative Societies Act and also the decisions ofthis Court on that point. 4.Heard the learned counsel for the petitioner, the learned counsel for respondents 1and 2, the learned counsel for the 3[rd] respondentand also the learned Government Pleader for the 4[th] :-4-: respondent. 5.Section 69 of the Kerala Co-operativeSocieties Act, 1969 deals with disputes to bedecided by Co-operative Arbitration Court andRegistrar. As per clause (c) of sub-section (1) ofSection 69, notwithstanding anything contained inany law for the time being in force, if a disputearises between the society or its Committee and anypast Committee, any officer, agent or employee orany past officer, past agent or past employee orthe nominee, heirs or legal representatives of anydeceased officer, deceased agent or deceasedemployee of the society, such disputes shall bereferred to Co-operative Arbitration Courtconstituted under Section 70A of the Act, in thecase of non-monetary disputes and to the Registrar,in the case of monetary disputes, and theArbitration Court or the Registrar, as the case may :-5-: be, shall decide such disputes and no other courtor other authority shall have jurisdiction to entertain any suit or other proceedings in respectof such disputes. As per clause (b) of subsection(2) of Section 69, for the purpose of sub-section(1), any dispute arising in connection withemployment of officers and servants of thedifferent classes of societies specified in sub-section (1) of Section 80 of the Act, includingtheir promotion and inter se seniority, shall alsobe deemed to be disputes. 6. In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Court held that non-entertainment of a writ petition under Article226 of the Constitution of India when anefficacious alternative remedy is available is arule and self imposed limitation. It is essentiallya rule of policy, convenience and discretion rather W.P.(C)No.15034 of 2018 :-6-: than a rule of law. Undoubtedly, it is within thediscretion of the High Court to grant relief underArticle 226 of the Constitution of India, despitethe existence of alternative remedy. However, HighCourt must not interfere if there is an adequateefficacious alternative remedy available to thepetitioner and he has approached the High Courtwithout availing the same, unless he has made outan exceptional case warranting such interference orthere exists sufficient ground to invoke theextraordinary jurisdiction under Article 226. 7. InAuthorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85] the ApexCourtreiteratedthatthediscretionaryjurisdiction under Article 226 of the Constitutionof India is not absolute but has to be exercisedjudiciously in the given facts of a case and inaccordance with law. The normal rule is that a writ :-7-: 7. InAuthorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85] the ApexCourtreiteratedthatthediscretionaryjurisdiction under Article 226 of the Constitutionof India is not absolute but has to be exercisedjudiciously in the given facts of a case and inaccordance with law. The normal rule is that a writ :-7-: petition under Article 226 of the Constitution ofIndia ought not to be entertained if alternativestatutory remedies are available, except in casesfalling within the well defined exceptions asobserved in Chaabil Das Agarwal's case (supra),i.e., where the statutory authority has not actedin accordance with the provisions of the enactmentin question or in defiance of the fundamentalprinciples of judicial procedure, or has resortedto invoke the provisions which are repealed, orwhen an order has been passed in total violation ofthe principles of natural justice. After referringto the law laid down in Thansingh Nathmal v.Superintendent of Taxes andTitaghur Paper Mills Company Ltd. v. State ofOrissa [(1983) 2 SCC 433] the Apex Court held thatHigh Court will not entertain a petition underArticle 226 of the Constitution if an effective :-8-: alternative remedy is available to the aggrievedperson or the statute under which the actioncomplained of contains a mechanism for redressal ofgrievance. Therefore, when a statutory forum iscreated by law for redressal of grievances, a writpetition should not be entertained ignoring thestatutory dispensation. 8. In Thansingh Nathmal's case (supra) aConstitution Bench of the Apex Court held that, thejurisdiction of the High Court under Article 226 ofthe Constitution is couched in wide terms and theexercise thereof is not subject to any restrictionsexcept the territorial restrictions which areexpressly provided in the Articles. But theexercise of the jurisdiction is discretionary: itis not exercised merely because it is lawful to doso. The very amplitude of the jurisdiction demandsthat it will ordinarily be exercised subject to W.P.(C)No.15034 of 2018 :-9-: certain self imposed limitations. Resort to thatjurisdiction is not intended as an alternativeremedy for relief which may be obtained in a suitor other mode prescribed by statute. Ordinarily,the court will not entertain a petition for a writunder Article 226, where the petitioner has analternative remedy, which without being undulyonerous, provides an equally efficacious remedy.Again the High Court does not generally enter upona determination of questions which demand anelaborate examination of evidence to establish theright to enforce for which the writ is claimed. TheHigh Court does not, therefore, act as a court ofappeal against the decision of a court or tribunal,to correct errors of fact, and does not by assumingjurisdiction under Article 226 trench upon analternative remedy provided by statute forobtaining relief. Where it is open to the aggrieved W.P.(C)No.15034 of 2018 :-10-: petitioner to move another tribunal or even itselfin another jurisdiction for obtaining redress inthe manner provided by a statute, the High Courtnormally will not permit by entertaining a petitionunder Article 226 of the Constitution, themachinery created under the statute to be bypassed,and will leave the party applying to it to seekresort to the machinery so set up. 9. In Titaghur Paper Mills' case (supra) a W.P.(C)No.15034 of 2018 :-10-: petitioner to move another tribunal or even itselfin another jurisdiction for obtaining redress inthe manner provided by a statute, the High Courtnormally will not permit by entertaining a petitionunder Article 226 of the Constitution, themachinery created under the statute to be bypassed,and will leave the party applying to it to seekresort to the machinery so set up. 9. In Titaghur Paper Mills' case (supra) a Three-Judge Bench of the Apex Court held that, theOrissa Sales Tax Act, 1947 provides for a completemachinery to challenge an order of assessment, andthe impugned orders of assessment can only bechallenged by the mode prescribed by the Act andnot by a petition under Article 226 of theConstitution. It is now well recognised that wherea right or liability is created by a statute whichgives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.This rule was stated with great clarity by Willes,J. inWolverhampton New Water Works Co. v.Hawkesford [(1859) 6 CBNS 336] at page 356 in the following passage: "There are three classes of cases in which aliability may be established founded uponstatute ..... But there is a third class, viz.,where a liability not existing at common law iscreated by a statute which at the same timegives a special and particular remedy forenforcing it ..... the remedy provided by thestatute must be followed, and it is notcompetent to the party to pursue the courseapplicable to cases of the second class. Theform given by the statute must be adopted andadhered to." The rule laid down in that passage was approved bythe House of Lords in Neville v. London Express Newspaper Ltd.[1919 AC 368] and has been reaffirmed by the Privy Council in Attorney General ofTrinidad and Tobago v. Gordon Grant and Co. [1935 :-12-: AC 532] and Secretary of State v. Mask and Co. [AIR 1940 PC 105]. It has also been held to be equallyapplicable to enforcement of rights and has beenfollowed by the Apex Court throughout. 10. In the instant case, the claim made bythe petitioner for promotion to the post ofAccountant; claim for seniority; etc. are disputeswhich have to be raised for adjudication before theCo-operative Arbitration Court, in view of theprovisions under clause (c) of sub-section (1),read with clause (d) of sub-section (2) of Section69 of the Act. As per sub-section (2) of Section 70of the Act, the Co-operative Arbitration Court isempowered to make such interlocutory orders as itmay deem necessary in the interest of justice,pending award of a dispute referred to it underSection 69. An award passed by the ArbitrationCourt under sub-section (1) of Section 70 of the :-13-: Act is appealable before the Co-operative Tribunal,under clause (a) of subsection (1) of Section 82 ofthe Act. The provisions under Sections 69 and 70 ofthe Act makes it abundantly clear that an effectivestatutory forum has been created under the Act foradjudication of disputes of the employees of a Co-operative Banks in connection with theiremployment, including promotion and inter seseniority. 11. In Association of Milma Officers v. Stateof Kerala [2015 (1) KLT 849], one of the issuesthat came up for consideration before a LargerBench of this Court was as to whether a writpetition under Article 226 of the Constitution ofIndia is maintainable against Co-operativeSocieties registered under the Kerala Co-operativeSocieties Act. After referring to the provisionsunder the Act, this Court held that writ petitions :-14-: 11. In Association of Milma Officers v. Stateof Kerala [2015 (1) KLT 849], one of the issuesthat came up for consideration before a LargerBench of this Court was as to whether a writpetition under Article 226 of the Constitution ofIndia is maintainable against Co-operativeSocieties registered under the Kerala Co-operativeSocieties Act. After referring to the provisionsunder the Act, this Court held that writ petitions :-14-: are maintainable against Co-operative Societies incertain circumstances, namely, when the actioncomplained of in the writ petition is of anystatutory violation on the part of the Co-operativeSociety or the action of the Co-operative Society,if falls in a public domain or breach of public duty is complained of. In the absence of breach ofany statutory duty or public duty, a writ petitioncannot be entertained against a Co-operativeSociety. In the said decision, the Larger Benchheld that the Full Bench judgment in Bhaskaran andothers v. Additional Secretary and others [1987 (2)KLT 903], cannot be read as holding that writpetition will lie only against a Co-operativeSociety, which is State or authority within themeaning of Article 12 of the Constitution. 12. In Association of Milma Officers' case(supra), the 2[nd] petitioner was working as Senior :-15-: Manager-in-charge of Thiruvananthapuram RegionalCo-operative Milk Producers Union Ltd., who wasgoverned by the Staff Regulations of the saidUnion. It was the case of the petitioners that eventhough the 2[nd] petitioner was eligible to beappointed in the post of Senior Manager (Diary),respondents 3 and 4 were taking hasty steps toappoint the 7[th] respondent to the said post. Afterreferring to the Staff Regulations, this Court heldthat the said Regulation, being not of statutorynature, even if the submission is accepted thataction of the respondent in proceeding to appointthe 7[th] respondent was in violation of the StaffRegulation, the said violation of the non-statutoryprovision could not have been made the subjectmatter of writ proceedings. Since no infraction ofany statutory provision or violation of any publicduty was alleged, this Court held that the writ :-16-: petition filed under Article 226 of theConstitution is not maintainable. In such circumstances, the reliefs sought forin this writ petition squarely falls within thescope of Section 69 of the Kerala Co-operativeSocieties Act. In the result, this writ petition is dismissed,without prejudice to the right of the petitioner toinvoke statutory remedy under Section 69 of theKerala Co-operative Societies Act by approachingthe Co-operative Arbitration Court. All pending interlocutory applications areclosed. Sd/- ANIL K.NARENDRAN JUDGE ami/11.12.18 :-17-: APPENDIX PETITIONER'S EXHIBITS: EXT.P1. AWARD DATED 17-03-2010 IN I.D. NO. 36/2010 OF THE INDUSTRIAL TRIBUNAL. EXT.P2. A TRUE COPY OF THE SENIORITY LIST PUBLISHED BY THE BANK. EXT.P3. A TRUE COPY OF THE OBJECTION DATED 02-05-2017 FILED BY THE PETITIONER. EXT.P4. A TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT DATED 31-05-2017. EXT.P5. A TRUE COPY OF THE FEEDER CATEGORY APPROVED BY THE JOINT REGISTRAR ON 09-02-1982. EXT.P6. A TRUE COPY OF THE PETITION 03-06-2017 FILED BY THE PETITIONER BEFORE THE JOINTREGISTRAR. EXT.P7. A TRUE COPY OF THE PETITION 29-07-2017 FILED BY THE PETITIONER BEFORE THE JOINTREGISTRAR.